Proposed changes

2009

Senate Bill 232

Senate Bill 232 was passed by the Indiana Senate Committee on Local Government and the full Senate and was referred to the House on February 24, 2009 .[1][2] The bill provided for civil penalties of up to $500 against government agencies -- or their individual employees -- that violate Indiana's Public Records Act or Open Door Law.[2] This bill would have allowed public agencies or workers who were deemed to have violated the Public Records Act or the Open Door Law to be fined by a judge.[2] Officers or employees of the agencies that are found to be in violation of one of these acts and are thereby assessed fines would pay out of pocket.[2] Any fines assessed against government agencies, however, would be paid by the agencies' budgets.[2]

The bill also proposed to allow employees and agencies to provide notice of meetings to individuals that request such notice annually.[2] That notice may be provided via email or on the state agency's website 48 hours prior to the meeting.[2] This advance notice was already available to news organizations, and the bill proposed extending the privilege to all citizens.

The bill would also have allowed government agencies to keep information regarding minors under the age of 19 confidential.[2] The bill proposed the creation of an education fund to provide training for the public and for public officials as to their responsibilities under public access law.[2] Finally, the bill proposed that where a formal complaint is filed regarding the unavailability of a document or redactions within a document, a "public access counselor" should review the records to determine whether the elimination of information violates public access laws.[2]

Reaction to the bill

The bill received a negative response from various groups representing elected officials at the local level, including the Indiana Association of Cities and Towns and the Association of Indiana Counties. They argued that the proposed meeting notifications were too time consuming for local governing agencies to comply with and that the bill may subject government employees to liability and fines for denying open record requests at the direction of their superiors.[3][4]

The bill received support from representatives of the Hoosier State Press Association, citizen activists and journalists. In support of the bill, they argued that until recently there had not been any enforcement measures to deal with a government agency that refused to comply with the law.

Tony Fargo, associate professor of the Indiana University School of Journalism, testified in favor of the bill before the Senate's Local Government Committee.[5]The Indiana Tribune-Star, Palladium-Item and IndyStar.com all endorsed the bill.[6][7]

Senate Bill 32

Senate Bill 32, having to do with notice of meetings, is related to Senate Bill 232.[8] The bill was referred to the Committee on Commerce and Public Policy & Interstate Cooperation.[9] The bill would have reuqired government agencies to provide notice of meetings to anyone who requests such notice annually.[9] According to the proposed bill, notice may be given by mail five days in advance for any non-emergency meetings for a $10 fee annually.[9]

Senate Bill 1230

Senate Bill 1230, having to do with notice of meetings, was passed by the Senate Committee on Local Government.[10] The bill included proposals to require newspapers that publish notice of meetings to include the notice on their website and a proposal to eliminate the requirement for agencies to publish the ordinance setting the salaries of elected city officers.[10]

Senate Bill 1280

Senate Bill 1280 was passed by the Committee on Ways and Means and the full House and has since been referred to the Senate Committee on Tax and Fiscal Policy.[11][11] If passed, the bill would have required state agencies to report budget information to the state auditor's office so that it could begin to make available online all state expenditures and account balances no later than July 1, 2009.[11]

Indiana's transparency report card

A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked Indiana #29 in the nation with an overall percentage of 51.10%.[12]

A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave Indiana 59 points out of a possible 100, a letter grade of "F" and a ranking of 14 out of the 50 states.[13]

A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked Indiana's law as the 13th best in the country, giving it a letter grade of "C."[14]

Features of the law

Declared legal intention

The Indiana Access to Public Records Act states, "A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information."[15]

"Records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making"[16]

Personal files of employees excluding "the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first and last employment of present or former officers or employees of the agency" as well as disciplinary information[16]

Names of charitable donors if the donor requires nondisclosure of the donor's identity as a condition of making the gift

Library records

Security measures for telecommunications, schools, and general infrastructure

Correctional officer information

Complaint information within law enforcement agencies as well as job descriptions for officers

Contact information for utility employees

Labor negotiations

However, agencies are required by statute to separate disclosable and non-disclosable information in one source and release the non-exempt material.

Deliberative process exemption

What agencies are covered?

The act defines agencies as any division of the state government including executive, administrative, judicial, or legislative power, as well as all political subdivisions and any organization whose budget is up for review by state officials. The only clear exemptions are medical staffs and committees associated with those staffs, agencies who receive funds from the government in exchange for goods and services.[16]

Legislature

While the Indiana Access to Public Records Act includes state legislative bodies within its definition of public body found at Indiana APRA 5-14-3-2-M, 5-14-3-2.1, the Indiana Supreme Court ruled in State ex rel. Masariu v. Marion Superior Court that they are unable to enforce the law against the legislature due to separation of powers considerations.[17]

Public universities

The definition of public body presumably includes the administrative capacities of public universities within the state. However, academic research, grade transcripts and the names of anonymous charitable donors are explicitly exempted under Indiana APRA 5-14-3.

How can records be used?

Exempted from the commercial use clause are news publications, academic research, and non-profit organization activities. Further, certain lists of names and addresses and email addresses cannot be used for political or commercial purposes, specifically government employee lists, conference attendees lists and lists of students attending public schools.

Role of the Attorney General

There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records. Those denied access to public records are advised under the Act to seek remedy by filing suit in any court of competent jurisdiction within the state.

Open meetings

"It is the intent of this chapter that the official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed."[23]